Som Dutt And Others vs Shyam Singh And Another

Tarlok Singh Chauhan, J

The plaintiffs are the appellants, who aggrieved by the judgments and decrees passed by both the learned Courts below, have filed the instant appeal.

During the pendency of the appeal, the original plaintiff Kheema Ram died and consequently his legal representatives were ordered to be brought on record as appellants.

The parties shall be referred to as the plaintiff and the defendants.

Brief facts of the case are that the plaintiff filed a suit for ejectment, possession and recovery against the defendants on the ground that he was the owner of the land alongwith other building existing over a portion of the suit land comprised in Khata/Khatauni No. 57 min/67, Khasra No. 524/330 min, situated in Village Chamia, Pargana Bharoli, Tehsil Kasauli, District Solan, H.P. It was averred that he had inducted defendant No.1 as tenant in the shop measuring 10 x 10 feet on monthly rent of Rs.600/- in the year 2003. Defendant No.1 was irregular in the payment of rent and did not pay the rent in time. Thereafter, defendant No.1 sub let the shop without permission of the plaintiff in favour of defendant No.2. On these allegations, the plaintiff sought ejectment of the defendants and further sought recovery of arrears of rent amounting to Rs.4200/-.

The defendants contested the suit by filing written statement wherein the relationship of landlord and tenant was denied. It was averred that defendant No.1 was owner in possession of the shop and had let out the same to defendant No.2. Counter-claim was also preferred by defendant No.1 wherein he challenged the entries incorporated in the revenue record wherein the plaintiff had been shown as 'Gair Maurussi tenant' to be declared null and void and claimed himself to be the owner in possession of the land.

From the pleadings of the parties, the learned trial Court on 5.11.2004 framed the following issues:

Whether the plaintiff is owner of the land alongwith building existing over the suit land as alleged? OPP

Whether the plaintiff had inducted the defendant No.1 as tenant in the shop measuring 10 x 10 feet about one year back on monthly rent of Rs.600/- as alleged? OPP

Whether the plaintiff has terminated the tenancy of defendant No.1 through legal notice U/s 106 T.P. Act, dated 18.6.2003 as alleged? OPP

Whether the plaintiff is entitled for the relief of decree for possession and recovery as alleged? OPD

Whether the plaintiff is estopped from his own act, conduct and acquiescences, as alleged? OPD

Whether the suit is not maintainable as the plaintiff has no right, title or interest over the suit land, as alleged? OPD

Whether the defendant No.1 is entitled for the relief of counter claim as alleged? OPD

Relief.

After recording evidence and evaluating the same, the suit filed by the plaintiff and the counter claim preferred by defendant No.1 was dismissed by the learned trial Court vide judgment and decree dated 10.12.2007. Both the parties being aggrieved by the said judgment and decree, preferred the appeal and cross-objections, respectively, which too, were dismissed by learned first Appellate Court vide judgment and decree dated 22.04.2009. It is against this judgment and decree passed by the learned first Appellate Court that the plaintiff has filed the instant appeal.

On 06.01.2010, the appeal came to be admitted on the following substantial questions of law:

Whether the suit of plaintiff for possession by ejectment could be dismissed by both the courts below, after having recorded findings that defendant No.1 has no title to suit land and his counter claim having been dismissed?

Whether both the learned Courts below have fallen in error by wrongly relying on agreement Ex.DW-4/A, which is a manipulated, fabricated and suspicious document?

Whether both the Courts below have mis-construed and misunderstood the revenue entries which fully supported the claim of appellant?

. I have heard learned counsel for the parties and have gone through the records of the case.

Since all these substantial questions of law are intrinsically inter-linked and interconnected, therefore, they were taken up together and are being disposed of by common reasoning.

The plaintiff in order to prove his case had tendered his evidence in examination-in-chief while appearing as PW-1 vide Ex. PW-1/A wherein he stated that the house in question was constructed by his father Jangi Ram and lateron there was a partition between his father and the brothers of his father wherein the shop fell to the share of the father of the plaintiff. The shop was given to Bablu Ram and his father Jaishi Ram and Hem Chand, who later vacated the same. Thereafter, the shop was given to defendant No.1 on monthly rent of Rs.600/-. For some time, defendant No.1 run the shop himself and also paid the rent, but in the month of January, 2003, he stopped the payment of rent of this shop and inducted defendant No.2 as tenant in the shop who was running a tailoring shop. He stated that this sub let was without the permission of the plaintiff.

In cross-examination, the plaintiff admitted that Khasra No. 524/330 min measuring 15 biswas had been shown in the name of the State of Himachal Pradesh as owner. He admitted that he had been shown as 'Gair Maurussi' (non-occupancy tenant) in the revenue record. He stated that he was not paying any rent in the capacity of tenant to the State of Himachal Pradesh. He stated that he now became owner of the land after 2002. He further stated that he was not inducted as tenant by anyone but claimed himself to be the tenant over the suit land. Out of 330 bighas of total land in village Chamia, now he possessed about 200 bighas of land. He also stated that there is electricity connection in the shops for the last 20-25 years and electric meters are installed in his name. He stated that adjoining to the disputed shop, there is a welder shop. He stated that the name of his grand-father was Tikhoo, who had four sons namely Jangi Ram, Tulsi Ram, Kinu and Daulat Ram. He denied that defendant No.1 is not his tenant. However, he denied that the defendant is co-owner of the disputed land or that the disputed shop had come to his share.

PW-2 is Bablu Ram, who tendered in evidence his affidavit Ex. PW-2/A and deposed that the shop in question was taken on rent by defendant No.1 from the plaintiff and thereafter it was sub let to defendant No.2. However, he could not state any date, month or year regarding creation of tenancy as also the rate of rent. In cross-examination, he stated that he had taken the shop from the plaintiff. This is the only evidence led by the plaintiff.

The plaintiff also tendered in evidence the copy of jamabandi for the year 1962-63 Ex. PX, for the year 1966-67 Ex. PY and copy of jamabandi for the year 1966-67 Ex. PZ.

To rebut the evidence of the plaintiff, the defendants including themselves examined eight witnesses. DW-1 Nand Lal is the Patwari, Patwar Circle, Chamia, Tehsil Kasauli, who had brought the summoned record.

DW-2 is Kamal Kumar, who proved the electric connection that was installed in the premises in favour of Tara Dutt son of Sh. Durga Ram.

DW-3 is Ramesh Chand, who had brought the Rapat Rojnamcha file from the year 1961 to 1966 and stated that he could not say on what basis jamabandi Ex. DW-3/A was made as there is no corresponding entry in the Rojnamcha regarding this jamabandi.

DW-4 is defendant No.1 Shyam Singh, who tendered in evidence his affidavit Ex. DW-4/A and proved on record rent agreement in favour of defendant No.2, Ex.DW-4/B. In his affidavit, he deposed that the shop in question was in possession of his grand-father Tikhoo Ram. Since the shop was in bad condition, he got it repaired in February, 2003 and thereafter let out the same to defendant No.2 at the rate of Rs.250/- per month. He stated that the plaintiff was never inducted as tenant over the suit property and the whole land including the suit land had been mutated in favour of all the villagers, who are proprietors of the suit land. He further stated that the mutation was reviewed by the Government and was pending consideration before the Tehsildar. In cross - examination, he stated that the suit land was previously possessed by one Shibia but did not know that said Shibia had given the land to the plaintiff.

DW-5 is Devi Ram, who tendered in evidence his affidavit Ex.DW-5/A. He stated that the shop remained in possession of defendant No.1. In cross-examination, he stated that the name of defendant No.1 was Durga Ram and his wife name was Kalawati. He, however, admitted that in the year 2001 when Shyam Singh came to the village, plaintiff Kheema Ram had given him the shop on rent. He stated that now the shop was given on rent to a tailor.

DW-6 is Gulab Singh, who stated that the shop in question was given on rent by defendant No.1 to defendant No.2 in his presence and agreement Ext.DW-4/B was executed in his presence and he identified his signatures on the said agreement in circle 'A'. In cross-examination, he stated that his village is about 2 Kilometers from village Chamia. He stated that the possession of the land was with the ancestors of Shyam Singh, however, he did not know that the land belonged to Shibia, who had given it to Kheema Ram.

DW-7 Bhagat Ram is the defendant No.2, who stated that he took on rent the shop in question from defendant No.1 as per rent agreement Ex. DW-4/B. In cross-examination, he did not know the original owner of the disputed shop. He denied the suggestion that in connivance with defendant No.1, Ex.DW-4/B had been got executed.

DW-8 is Om Parkash, who tendered in evidence his affidavit Ex.DW-8/A, in which he stated that he had carried out the repairs in the said shop in February, 2003 at the instance of defendant No.1. He stated that there were two-three labourers with him at the time of repairing the shop. In cross-examination, he stated that he had worked in the shop about 8-9 years ago. He, however, denied that he had worked at the instance of Kheema Ram, plaintiff.

This in entirety is the oral evidence of the defendants.

From the evidence emerging on record, it appears that defendant No.1 was in possession of the premises which he converted into shop in the year 2003 and got electricity connection installed in the same. No doubt, in the revenue record, the land beneath the shop is shown to be in possession of the plaintiff as a tenant, but the fact remains that Tikhoo was grand-father of the plaintiff and defendant No.1 and at the time of renovation of the shop the same was in possession of defendant No.1, who in fact had carried out the renovation work.

It is more than settled that the tenancy is a bilateral agreement between the parties. But the plaintiff has failed to prove any such agreement whereby he inducted defendant No.1 as tenant. On the other hand, defendant No.1 has categorically placed on record agreement Ex.DW- 4/B whereby he inducted defendant No.2 as a tenant. Moreover, even in the pleadings of the plaintiff, there is no mention as to when defendant No.1 was inducted as tenant.

It is otherwise more than settled that when the plaintiff has come up with the suit, it is his bounden duty to stand on his own legs. Any defect or lacuna in the defence case cannot support the plaintiff's legs to stand rather the plaintiff must prove his case to the satisfaction of the Court for getting a decree in his favour.

Additionally, it would be noticed that the plaintiff has failed to lead any clear, convincing much less cogent evidence to prove that the agreement of tenancy as set up by the defendants is a manipulated, fabricated or even suspicious as claimed by him.

All the substantial questions of law are answered accordingly.

In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, so also the pending application(s) if any, leaving the parties to bear their own costs.